IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA HELD AT CONSTITUTIONAL HILL
CASE NUMBER: CCT 124/2011 In the matter between:
MPOFU, MANDLA TRUST APPLICANT
and
THE MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT 1ST RESPONDENT
SOUTH GAUTENG HIGH COURT 2ND RESPONDENT
THE DIRECTOR OF PUBLIC PROSECUTIONS
SOUTH GAUTENG HIGH COURT: JHB 3RD RESPONDENT
and
CENTRE FOR CHILD LAW AMICUS CURIAE
APPLICANT’S COUNSELS PRACTICE NOTE
__________________________________________________________________
1. NATURE OF PROCEEDINGS
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The applicant was sentenced by the court a quo to, inter alia, life imprisonment for crimes including pointing a firearm, kidnapping, assault, murder, robbery with aggravating circumstances and the unlawful possession of a firearm (all arising out of a single incident) when he was allegedly 16 years old. He applied for, and was refused, leave to appeal by the high court, and, thereafter, also by the Supreme Court of Appeal.
Applicant now applies for leave to appeal to this court. Per Section 167(6)(b) of the Constitution of the Republic of South Africa, 1996, this application is an application to appeal to this court from the decision of the SCA to refuse the applicant leave to appeal.
2. ISSUES
2.1. Whether the High Court had proper regard to the age of the applicant at the time of the commission of the offences in question when imposing sentence;
2.2. Given that the Applicant has been refused leave by the High Court and the Supreme Court of Appeal, can he still apply to the High Court to lead further evidence on his age;
2.3. The appropriate order to be made by this court to afford the applicant the necessary relief;
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2.4. The basis on which this court is to determine the age of the applicant or any other accused for the purposes of adjudicating the application for leave to appeal;
2.5. The constitutional basis that exists for the court to intervene in the sentence the high court imposed on the applicant or any other accused;
3. SUMMARY OF ARGUMENT
WAS PROPER REGARD HAD TO THE AGE OF THE APPLICANT AT THE TIME OF THE COMMISSION OF THE OFFENCE:
The high court, having accepted that the applicant was a minor at the time of the commission of the offence, only went on to consider his youthfulness in passing. No pre-sentencing report was obtained and there was a dearth of information on the applicant’s personal circumstances. The sole basis on which the high court considered the applicant to be beyond reform was as a result of a previous conviction. Even the previous conviction was not a previous conviction in the true sense; it was a conviction for an offence committed later in time for which the applicant was convicted prior to the offence in question here. The High Court, in passing sentence, further failed to properly consider Section 28 of the Constitution and to factor in constitutional values in balancing the objects of sentence.
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CAN THE APPLICANT APPLY TO THE HIGH COURT TO LEAD FURTHER EVIDENCE ON HIS AGE GIVEN THAT HE HAS BEEN REFUSED LEAVE TO APPEAL BY THE HIGH COURT AND THE SUPREME COURT OF APPEAL:
The leading of further evidence is governed by Rules 30, 31 and 32 of the rules of this court as well as by Section 173 of the Constitution of the Republic of South Africa, 1996. These provisions allow for further evidence to be received by this court or for this court to remit the matter to the high court for the hearing of further evidence.
THE APPROPRIATE ORDER TO BE MADE BY THIS COURT:
It is submitted that the following order would be the appropriate one to be made in relation to the applicant’s sentence:
i. The sentence of life imprisonment for Count 4 is set aside and replaced with a sentence of 18 years;
ii. The remaining sentences of 4(four) years for Count one, 5 (five) years for Count two and 15(fifteen) years for count five are all ordered to run concurrently with the sentence of 18 years for count four;
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iii. The remaining period of imprisonment the applicant has to serve (of less than 5 years) is converted to a term of imprisonment of 5 years in terms of Section 276(1)(i) of the Criminal Procedure Act 51 of 1977;
THE BASIS ON WHICH THIS COURT IS TO DETERMINE THE AGE OF THE APPLICANT OR ANY OF THE OTHER ACCUSED FOR PURPOSES OF ADJUDICATING THE APPLICATION FOR LEAVE TO APPEAL:
The applicant’s age is to be determined through one of the following mechanisms:
i. The receipt of oral evidence in terms of Rule 30 or 31 of the rules of this court;
ii. The provisions of Sections 14 & 15 of the Child Justice Act 75 of 2008.
THE CONSTITUTIONAL BASIS THAT EXISTS FOR THE COURT TO INTERVENE IN THE SENTENCE THE HIGH COURT IMPOSED ON THE APPLICANT OR ANY OTHER ACCUSED:
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This matter concerns Section 28 of the Constitution which has been the subject matter of a number of decisions of this court.
4. PORTIONS OF THE RECORD RELEVANT TO ARGUMENT
4.1. Paginated pages:
4.1.1. 30-31, lines 25 on pg 30 to line 3 on pg 31;
4.1.2. 31, lines 4-10;
4.1.3. 69, lines 4-8;
4.1.4. 71, lines 12-13;
4.1.5. 71, lines 17-20;
4.1.6. 72, lines 7-13;
4.1.7. 72, lines 20-24;
4.1.8. 72-72, line 25 on pg 72 to line 3 on pg 73;
4.1.9. 73, lines 4-10.
5. ESTIMATED DURATION OF ARGUMENT 2hrs
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6. AUTHORITIES RELIED UPON
6.1. Centre for Child Law v Minister of Justice and Constitutional Development and Others 2009 (6) SA 632 (CC)
6.2. M v S (Centre for Child Law Amicus Curiae) 2007 (12) BCLR 1312 (CC);
6.3. Prophet v National Director of Public Prosecutions 2007 (6) SA 169 (CC);
6.4. R v Swanepoel 1945 AD 444 (A) at 454-455;
6.5. S v B 2006 (1) SACR 311 (SCA);
6.6. S v Holder 1979 (2) SA 70 (AD) at 74H-75A;
6.7. S v Jansen 1975 (1) SA 425 (A) at 428A-G;
6.8. S v Karg 1961 (1) SA 231 (A) at 236A-B;
6.9. S v Kwalase [2000] JOL 7128 (C);
6.10. S v Lehnberg 1975 (4) SA 553 (A);
6.11. S v Maarman 1976 (3) SA 590 (A);
6.12. S v Mapatsi 1976 (4) SA 721 (A) at 724;
6.13. S v Matabane 1975 (4) SA 564 (A);
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6.14. S v Mohlobane 1969 (1) SA 561 (A);
6.15. S v Nkosi 2002(2) SACR 135 (W);
6.16. S v Ntaka [2008] JOL 21579 (SCA);
6.17. S v Qwabe 2007 (2) SACR 411 (T);
6.18. S v Williams & Others 1995 (3) SA 632 (CC) at 651G-652B; 654;
6.19. S v Zinn 1969 (2) SA 537 (A) at 540G;
6.20. Shaik & Others v S 2007 (12) BCLR 1360 (CC);
6.21. Swaartbooi & Others v Brink & Another 2003 95) BCLR 497 (CC);
_______________________
W J VERMEULEN SC
_______________________
Y ALLI
Counsel for the Applicant Chambers, Sandton 24 October 2012
